Burden of Proof

Texas Death Row Case: Convicted Murderer Gary Graham Set to Die Today

Aired June 22, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

GARY GRAHAM, TEXAS DEATH ROW INMATE: I am innocent of the charges. I did not kill Bobby Lambert. There is a mountain of evidence, overwhelming and compelling evidence to prove that I did not kill Bobby Lambert. For 19 years now, we have tried to get people in the courts to look at the evidence.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I understand the emotions of the death penalty. I do. My job is to uphold the laws of the state of Texas.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: This evening, death row inmate Gary Graham is scheduled to be executed in Huntsville, Texas. But at this hour, the state's Pardons and Parole Board is considering his fate.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

In 1981, 53-year-old Bobby Lambert was robbed and murdered in a grocery store parking lot in Houston, Texas. For the last 19 years, Gary Graham has sat on death row for that crime, and today, he could be executed.

ROGER COSSACK, CO-HOST: Now, the Graham case has reignited the controversy surrounding the death penalty because of the circumstances surrounding his trial. He was 17 years old when he was arrested and had admitted to at least 10 armed robberies in the days after the killing. But Graham was convicted based on the testimony of a sole eyewitness.

VAN SUSTEREN: In an interview with Graham two weeks ago at a Livingston. Texas prison, I asked graham about his date with the death chamber and the position of Governor Bush.

(BEGIN VIDEO CLIP)

GRAHAM: I wrote a letter to Governor Bush, an letter, it's an open letter to Governor Bush, and I think, you know, that Governor Bush is a very intelligent man, and he has -- he's very aware of what is happening here in Texas. He is very aware of the system that is out of control.

I think the governor has the power to stop. He must stop -- he must step in and provide leadership and stop this genocide and stop this oppression that is happening.

(END VIDEO CLIP)

COSSACK: And joining us today from Houston is Rusty Hardin, attorney for Bernadine Skillern, the sole eye-witness in the case against Graham. And also in Houston, Greg Jones, who was robbed and shot by Graham in 1981.

VAN SUSTEREN: And in New York, we are joined by criminal defense attorney Barry Scheck. Here in Washington, Jeremy Peters (ph), former federal prosecutor Sol Wisenberg, and Nicole Miller (ph).

COSSACK: And in the back, Angie Gress (ph) and Jason Heldenbrad (ph). And also joining us from Huntsville, Texas is CNN national correspondent Charles Zewe.

Charles, you are outside the prison, describe what the scene is at the prison. What's going on? are there protesters? and what is expected?

CHARLES ZEWE, CNN NATIONAL CORRESPONDENT: Few protesters right now, Roger, there have been several members of the New Black Panthers, the Black Muslims, anti-death penalty groups gathering, I would say maybe a couple of dozen of them right now have gathered near the Walls unit, which is back behind me there, which is where the death chamber is located.

Later in the day, the number is expected to be a lot bigger between anti-death penalty groups and pro-death penalty group, some members of the Ku Klux Klan, according to prison officials, are expected, and there have been threats. Prison officials say they are not taking any chances. There are about 200 Texas rangers, state troopers, prison guards, the FBI is here, just to make sure that peace is maintained.

There had been some thought about whether the Black Muslims in particular, who have paraded around Houston with weapons, most of the time unloaded weapon. Nonetheless, prison officials were asked whether those Muslims would be allowed to have weapons here, and prison officials said no, they would not be allowed to get anywhere close to the prison with any sort of weapon, loaded or unloaded.

Just a few minutes ago here, the Reverend Jesse Jackson and Bianca Jagger went inside the prison to meet with Gary Graham. Graham, according to prison officials, has been very quiet. He has refused meals and has only asked for two cups of coffee in about the last 12-18 hours since he was transferred here to the Walls unit.

One additional piece of news here is that Graham has vowed for some time now and has had several dust-ups with the prison guards about being moved around. He has vowed that he would not go quietly to his death if it came down to an execution.

Last night, after his visiting time with his family ended, he was told that he would be moved immediately to a holding cell near the death chamber. He resisted as he was being handcuffed and had to be subdued by a cell extraction team. He wasn't actually in the cell, he was near a visiting area, from what prison officials say.

The guards weren't hurt, Graham wasn't hurt, and he was moved without further incident to the holding cell, which is where he is waiting now.

VAN SUSTEREN: Barry, we're waiting for the Board of Prisons and Paroles to issue their decision, but in the event it's one that calls for a death for Gary Graham, is there any other recourse? is the Supreme Court still a possibility in this case?

BARRY SCHECK, CRIMINAL DEFENSE ATTORNEY: Boy, you know, you really have to ask the lawyers on the ground. I think it's unlikely that they're going to give a hearing on this case. I think it ultimately comes up to Governor Bush, if the pardon board does enact his powers are limited, but he could take a look at this case and say there's a reasonable doubt and commute I suppose.

COSSACK: You know, that's been a good question in the sense of whether or not he can do that, Sol. What exactly are the governor's powers? It seems to be there has been a previous reprieve by a prior governor, could Bush stop this if he wanted to?

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR: Apparently he cannot give a reprieve. But Mr. Scheck is correct, he could commute.

COSSACK: He has the power to commute?

WISENBERG: Yes, he does.

VAN SUSTEREN: Charles, the governor has, under his watch, there have been I think this is 135th execution. You've been covering executions for some time in Texas, among other stories. Is this different? I mean, the climate out there, outside the prison, is it different from other executions in any way?

ZEWE: What makes this different, Greta, is that the media attention, number one, makes it different. There are more reporter, more news organizations from around the world here than I've seen at any other execution over the last five or six years here, including the controversial execution of Karla Faye Tucker, the first woman put to death in Texas since the Civil War.

There is also a good deal more attention involving the anti-death penalty groups, in terms of this man who claims he's innocent. And there, of course, is the presidential campaign. The specter of George Bush saying and declaring a number of times now, he continued to say it yesterday, that only guilty people are being executed in Texas, and based on the Columbia University study of last week, and other criticisms of how Gary Graham's case was handled in particular, now people are saying: Now, wait a minute, are you sure that's true? are you positive that's true?

VAN SUSTEREN: Charles, the Board of Prisons and Parole, that's the next step, do you know if they're meeting in person?

ZEWE: No, they rarely, if ever, meet in person.

VAN SUSTEREN: How do they meet?

ZEWE: In the five years -- well, they meet by fax. The details of the case or the clemency plea is faxed to them at their offices. There are Secret Service agents in there, retired Secret Service agents, retired parole officials, and some current parole officials. They are faxed the details of the case, they decide and then fax their responses and their votes back to the Pardon Board chairman Gerald Garrett.

VAN SUSTEREN: And then he adds them up and he announces death or no death?

ZEWE: That's just about how it goes Greta.

VAN SUSTEREN: By fax?

ZEWE: There is one important thing, though, there is one important thing here to keep in mind, that before the Pardon Board can step in and grant clemency and stop an execution, they have to have the agreement, under Texas law, of the prosecution team. The prosecutors have to go along with it one way or the other. So far as we know, the prosecutors in Houston are not doing that.

COSSACK: All right, Charles Zewe, thank you for joining us today from Huntsville, Texas.

Up next, in six hours, convicted murderer Gary Graham could be executed in Huntsville, Texas, based on the testimony of one eyewitness. A look at witnesses' ability to recall details from a crime scene when we come back.

(BEGIN VIDEO CLIP)

VAN SUSTEREN: You know, Governor Bush says that an innocent man has never been executed under his watch. What's your response to that?

GRAHAM: I've just responded to that, and as I said, you cannot publicly -- politically they cannot afford to acknowledge the fact that you have poor people, innocent people here in Texas who are being systematically killed in this killing machine, and they are killing people for votes.

(BEGIN LEGAL BRIEF)

On Wednesday, just hours before a scheduled execution, a convicted double murderer in Virginia received a stay from the U.S. Supreme Court. Russel William Burket was convicted of killing a woman and her 5- year-old daughter in 1993. His current lawyers say he is mentally ill and did not have adequate counsel at trial.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers! You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to CNN.com/Burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

GRAHAM: We're sick and tired of being victimized. I think there is a difference between them, I think what Malcolm X said is that what white people consider violence is when a black man protects himself from the attacks of white people; and that's what we are dealing with here.

We're talking about a racist society here in Texas, which has a history of lynching black men. It has routinely tried to execute this process that carries out more executions to poor people and minorities than any other state in the country, and this is the part of the southern culture that we're dealing with.

(END VIDEO CLIP)

COSSACK: At 6:00 p.m. Central time, Texas death row inmate Gary Graham is scheduled to be executed by lethal injection. He was convicted in 1981 based primarily on the testimony of eyewitness Bernadine Skillern, who today still stands by her testimony.

Rusty, I want to talk with you about what the actual procedure in this case is. Obviously, the side, that for Gary Graham, to stop this execution says: Look, he didn't get a fair trial. There were two eyewitnesses who disagreed with your client regarding the eyewitness that the jury never heard. Is that true?

RUSTY HARDIN, ATTORNEY FOR GRAHAM EYEWITNESS BERNADINE SKILLERN: Yes and no, there are two eyewitnesses now who were known at that time, who now have versions different than Ms. Skillern's. But they were not that different at that time. You go back and forth, but basically what happens is, in those two instances, the woman inside did not see the shooting, she talks about a guy in a white coat she says was shorter inside. The guy says he saw the shooting, but at the time of lineup and others the clear indication to everyone was is that he couldn't identify anyone, not -- he couldn't exclude nor include anyone.

VAN SUSTEREN: But isn't that, I mean, Rusty, I got to tell you, and I'm going to go back, actually, I'm going to go to Barry on this. Barry, the fact that he couldn't make an identification, and we're talking about one of the witnesses who saw a man running in a white jacket afterwards, isn't that the kind of ineffective assistance a counselor -- wouldn't any decent, normal defense lawyer want the jury to hear this?

SCHECK: There's no question about it. I mean, here were two witnesses who saw the person, who by clothing, would be considered the assailant. They didn't see -- they said that Graham, you know, they said no one in the lineup was the person, that means Graham.

And that lineup also, I'm sure Rusty will concede, was not exactly a terrific lineup, because the description of the assailant was somebody without facial hair and close-cropped hair and all the other pictures, you can look at the lineup, are people with facial hair and bushy hair.

So Graham was sticking out, plus his lawyer didn't put into evidence the fact that the gun that Graham had on his possession, which was a .22, was not the .22 that fired the fatal bullet, the jury never even heard that at the penalty phase.

The representation by Robert Mock (ph), the lawyer in this case, was literally a mockery of justice, and I haven't heard anybody come forward with any persuasive defense of Mr. Mock's conduct.

VAN SUSTEREN: You know, Rusty, let me just say, Rusty, you know, this isn't the issue about whether Texas should or should not have the death penalty. In my mind the question is whether he got a fair trial, and I understand your client's, you know, her conviction that she's identified the right person. But people do make mistakes in identification, and this is the only evidence sending him to the gas chamber -- to the death chamber tonight.

HARDIN: No, no, no, no, no. People do make mistakes and it is perfectly reasonable to look behind it, Greta, I couldn't agree more, but you have to judge the credibility and the appearance and the certainty and so, that's what a jury does with eyewitnesses.

HARDIN: But wait just a second. The thing you've got to remember is, in this particular case, she did not give him the death penalty, her testimony didn't. He got the death penalty, he became eligible for it by being found guilty, but the jury could have given him life or death, the same issue is now, and what they found was, that 12 extraneous offenses, three shootings, all similar, all described the same way, Barry. The part...

VAN SUSTEREN: Oh, but that's not -- wait a second, Rusty...

COSSACK: let's not have a debate this, let's...

VAN SUSTEREN: Wait a second. That is not the problem. Look, let me say Gary Graham is a horrible person, wait a second, no, no, no, no, Gary Graham is a horrible person, he's an armed robber, no question about it. But the issue here isn't whether he's a horrible armed robber, in fact, he shot, I think, the man sitting next to you, the issue is whether he's guilty here.

HARDIN: No, that's not what I'm saying, Greta, I'm not saying because he was a bad guy in one case, he should be given the death penalty this time. What I'm saying is this: The law allows the jury to consider other similar crimes in deciding whether he did this one if he challenges his identity.

That's what would have happened if Rob Mock had done what all of you all keep saying he should have done. Those extraneouses were like a train load of guilt that were waiting to come in if he had done what you all want. That's why he didn't do it, you can read the record and see he's dancing around it. There are conversations with the judge: Judge, I haven't gotten there yet. Prosecutor says: I don't think he's there either, judge. They were all aware of those extraneouses.

SCHECK: Not the identifying witnesses, Rusty, Rusty, Rusty, when you're talking about the penalty phase and the gun, I don't see any excuse for not bringing in the gun. You can't say that the nonidentifying witnesses would have brought out the prior acts, a nonidentifying witness at the scene is a nonidentifying witness and that doesn't open the door to prior crimes.

HARDIN: In Texas law, and it's really classic 44B without getting too technical, in Texas law is similar to others, if you challenge the identity of the person or offer any alibi, which has been suggested he should have done, then you are potentially opening the door for all other similar extraneous defenses to come in.

SCHECK: You're not answering, well, that's not the point. You know, when you talk about two other people at the scene who would have offered testimony that he was not the man, that doesn't open the door.

HARDIN: They would not have, they would not have done it.

VAN SUSTEREN: All right, all right, well, let me stop everybody, because I've got to take us to break. And I also want to make sure when we come back we talk to Greg Jones who apparently was one of the victims of Gary Graham.

We'll be right back, stay with us.

(BEGIN Q&A)

Q: Gary Graham's son has been indicted for murdering a man on March 28. How old was he when his father was charged with murder in 1981?

A: Gary Graham's son was only 2 years old. Unlike his father, Gary Lee Hawkins, 20, will not face the death penalty if he is convicted.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: After spending nearly two decades on death row, convicted murderer Gary Graham is scheduled to be executed tonight in Huntsville, Texas. But as prison guards prepare to take him to the death chamber, the Texas Board of Pardons and Paroles is considering Graham's case.

Greg, you are a victim of Gary Graham. He hit you in the mouth with a gun five times and shot you, hitting you in the neck. And so you are sort of in a unique position in terms of weighing in on this. Does a one-witness identification case bother you sending someone to the death chamber, not keeping him in prison for life, but sending him to death?

GREG JONES, VICTIM OF GARY GRAHAM: No, not really. In most cases you are fortunate to have an eyewitness. You would be fortunate to have an eyewitness. In my case, I was a single eyewitness also, and he did plead guilty to that.

VAN SUSTEREN: He admitted to your crime?

JONES: Yes.

COSSACK: All right, let's also call in now Jennifer Thompson,

Jennifer, you were the victim of a horrible rape, and in fact you subsequently identified that person, and later changed your mind. What happened?

JENNIFER THOMPSON, RAPE VICTIM: Well, I didn't change my mind. We were able to prove that he was innocent due to DNA. I mean, I think the difference is I was an eyewitness, and obviously, the man was inches from my face, I had an extended period of time that I was able to look at him, and look at his features that would help me to identify him.

And when I went down to the police department, and I did the best job I knew to do, I did a composite drawing, I went to a photo lineup and picked out the person who I believed was my assailant and went to a physical lineup and picked out the person who I believed was my assailant, and went to a court and pointed him out in a court of law. Put my hand on the bible and the man went to prison for life.

VAN SUSTEREN: Jennifer, when you made the identification back in the early '80s, after having seen this man's face close up as he raped you, how certain were you that you picked out the right man who later turned out to be the wrong man.

THOMPSON: I was so certain. There was absolutely no person on this planet would have ever told me that I was wrong. I was so certain that I was absolutely willing to say I think that he should die.

COSSACK: Sol, this is why this is such a horrible problem, you have a one eyewitness case. We have heard from a woman who was inches from her assailant's face, it turns out that in good faith she was wrong. We heard from another person who identified Gary Graham as someone who shot him and almost killed him. The problem here is with a one eyewitness case, how can you ever be that certain that you want to impose the death penalty?

WISENBERG: Well, there are two different issues here. One is the theoretical issue of whether or not a one-eyewitness case alone is enough. I have been on this show before and said I wouldn't be opposed to a statutory scheme that would say one eyewitness alone isn't enough.

What bothers me about this case is 19 years or 10 years of misinformation put out by Mr. Graham and his supporters, which has been swallowed whole by the media.

VAN SUSTEREN: Wait a second, Sol, I have got some misinformation that has been put out by the prosecution. The prosecution claims that Gary Graham has had access to court, I think, about 36 times, and the access that Gary Graham has sought is to present to the court for consideration, the two eyewitness the jury never heard from. And the courts have turned him away, and the reason they have turned him away is a technicality because it's too late.

(CROSSTALK)

VAN SUSTEREN: let me tell you something, no court has heard from these witnesses yet. We are sending him to death. No court has heard, and what happens is, the prosecutors say: He's been to court 36 times.

WISENBERG: It's wrong to say that he's had a hearing 36 time, but as you well know, you have got to get to a certain level before you even have the right to a hearing. He went before as an example. He went before...

VAN SUSTEREN: Sol, this is life or death, isn't a sporting event. We're talking about the ultimate penalty.

WISENBERG: You don't get to go in every week for 19 years. I'm sorry you don't.

COSSACK: The issue here is is that, as we stand here today, I think, and as we stand here today ready to execute this person, whatever the reason is, there are two people out there who apparently had information that perhaps would have exonerated him in front of a jury if the lawyers would have called him.

WISENBERG: Not at the time. In 1993...

VAN SUSTEREN: Go ahead, Barry, in the few seconds, sorry, Sol, but we have to go Barry.

Go ahead, Barry, you have got a few seconds.

SCHECK: I think, look, it was in the police reports, the lawyer didn't pursue it in the way that he should. I don't think anybody can really argue with it. And Solomon's point is a good one, you know, the lawyers on appeal and in the first habeas didn't do a good job either. You know, you can't -- Finality is a good value, but unless you have competent lawyers running this system, you can't even approach the kind of fairness that we would require to impose the ultimate punishment.

COSSACK: Hate to set you off. But that's all the time we have for today. Thanks to our guests, thank you for watching.

The Board of Pardons and Paroles in Texas will announce its recommendations in the Graham case around 2:30 p.m. Eastern time.

VAN SUSTEREN: Stay tuned to CNN as we very closely follow the developments in Austin and Huntsville.

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